Cooper v. Utterbach

Bowie, J., delivered the opinion of the Court. The exceptions brought up by the appeal in this case, were taken in an action for malicious prosecution, instituted by the appellee, against the appellant, in the Superior Court of Baltimore City. The general issue was entered, and the parties agreed “that all errors of pleading be waived, and either party be permitted to prosecute or defend, on any evidence in the cause applicable to any state of the pleadings.” The appellee to maintain the issue on his part, offered in evidence a certified copy of a requisition from the Governor of Maryland, on the Governor of Virginia, accompanied by a record of the indictment and proceedings of the State of Maryland against him, charging him with obtaining money and stock of the appellant by false pretences, and showing his arrest, submission, and trial by the Court; the finding of not guilty, and jüdgment that he be discharged. The indictment, was found ³⁰⁵ at January Term, 1868, of the Criminal Court of Baltimore City, and the finding and judgment thereon rendered at May Term following.

The appellee also offered in evidence, certain proceedings and depositions, from a duly certified transcript of tiie record of an Equity suit, in the Circuit Court of Fauquier County, Virginia, instituted the 7th of February, 1868, by the appellant against the appellee and others, as defendants. The bill in this case charged that the appellant loaned the appellee in July, 1866, eleven thousand dollars, payable in two years, for which be took the appellee’s note for the principal, and four notes for the interest to accrue, and as security for the same, the appellee executed a deed of trust on certain lands in Fauquier County, Fa. The bill further charges, that “ During the pendency of the negotiation of the loan, the appellant was informed there was a prior deed of trust on said land, executed by the appellee, to one Phillips, to secure a debt from the appellee, to his father Arm-stead Utterbach, who was dead, and that letters of administration were granted on his estate, to the appellee. As the value of the land on which Utterbach, (the appellee,) proposed to secure the loan from your orator (the appellant,) was' about equal to the amount of money he desired to borrow, your orator declined advancing any sum upon it until satisfied that it was blear of all incumbrances.” The bill then charges certain acts and declarations of Utterbach, in his own right, and as administrator of Armstead Utterbach, by which he pretended to extinguish the prior incumbrance, and induced the complainant to believe it was released, and insisted the said acts amounted to a release, and prayed the .lands might be sold to satisfy the appellant’s debt.

The appellee’s answer admitted the execution of the notes mentioned in the bill, but denied the appellant had ³⁰⁶ loaned him $11,000; on the contrary, he averred that the money loaned was $4,980.17, and the balance of the consideration, was 86 shares of Navassa Phosphate stock, fraudulently represented by the appellant to he worth 55 per cent., and which he was induced to take at 70 per cent., making in the whole $6,020, which made up the consideration of the note of $11,000.- He admits that at the time of the negotiation, his real estate was encumbered by the deed of trust to Phillips, to secure six several bonds to Armstead Utterbach’s estate, only three of which were due, the rest having been discharged, and was also encumbered by several judgments to a large amount, and these encumbrances he was required to remove; that he was advised he had the legal right as administrator, to release the deed of trust, and took the necessary steps to effect a release. With regard to the judgments, he made an arrangement with his creditors, that their respective amounts should.be deposited in a Baltimore hank, and they were paid-out of the $4,980, aforesaid. The answer of Charles T. Green, administrator de bonis non of Armstead Utterbach, was filed claiming priority of lien _ under the deed of the appellee to Phillips, etc. By agreement, commissions were issued to Baltimore, and the depositions of various witnesses in relation to the negotiation of the loan between the ajjpellant and the ' appellee, were taken and returned. Numerous depositions were also taken by the appellant and the appellee, in the State of Virginia^ Issues were directed by the Court to a jury, to inquire whether fraud or usury was practiced by the appellant on the appellee, which being found for the former, the Circuit Court on the 23d of September, 1871, decreed 'that the' appellant was entitled to subject the real estate conveyed .by the appellee to Robert W. L. Rasin, by his ³⁰⁷ deed of trust, to the satisfaction and discharge of the debt thereby secured.

The appellee having further proved by the State’s Attorney for Baltimore City, that the requisition for the appellee was issued at his instance, upon the application of the appellant, who gave his version of the circumstances of the offence, thought himself aggrieved, and that the law had been violated; and was eager to have the appellee brought to justice, further proved by the same witness, that at the criminal trial, facts favorable to the prisoner were brought out in the testimony for the defence, and possibly on the cross-examination of the Htate’s witnesses, (though of this last he had no recollection,) which facts had not been previously known to witness. “Cooper and Bidgely told witness that the plaintiff had not relieved the lien, and had not given defendant an unincumbered title. This was when they saw witness before the issuing the requisition.” The plaintiff, (the appellee,) having rested,- the appellant read certain depositions and proceedings from the Chancery Record, (“which was read on both sides, at the pleasure of counsel, without objection,” says the bill of exceptions,) and proved by Col. John S. Mosby, that he was a member of the bar of Fauquier County, Va., and employed by the appellant, to enforce his rights under the deed of trust to Rasin, set forth in the Chancery Record. After detailing his connection with the case, and proceedings in prosecuting it, Col.

Mosby said, “he examined and ascertained all the facts connected with the case in Virginia for himself, and from them, and James M. Rasin’s statement of the facts of the original transaction between plaintiff and defendant, witness came to the conclusion that the plaintiff', (the appellee,) had obtained the appellant’s money and stock, under false and fraudulent pretences. “The defendant did not, nor did Jas. M. Basin consult witness on this point, but only employed him to enforce ³⁰⁸ defendant’s lien, and witness himself, of his own accord, volunteered to say to Rasin, and he thinks he wrote to defendant, that in his opinion, plaintiff had laid himself open to a criminal prosecution for false pretences.” The witness further testified, that “to the best of his recollection, he filed the bill in the Chancery case, a short time before the March rule day of the Fauquier Circuit Court; which rule day was the first Monday in March. The next day after filing it, (probably towards the close of February, 1868,) witness came to Baltimore, and went to see defendant, to whom he repeated orally the opinion in regard to plaintiff’s criminal liability, which he had expressed to Rasin, and also, he thought to defendant himself, by letter, the November before.” The witness further stated, “ that the evidence against the plaintiff in the criminal trial did not conflict or differ in any particular with that of the same witnesses, given in the Chancery proceeding here in evidence, upon the matters involved in the criminal case, and that the facts proven by the State on the criminal trial, were substantially the same as those shown by the depositions of the same witnesses in the Chancery Record. Either in chief, on the part of the State, or on cross-examination of the State’s witnesses, all the facts came out on which witness had formed his own opinion as to plaintiff’s guilt, and which appear in the Chancery Record, in the depositions of the same witnesses, without any thing to the contrary.” On cross-examination, the plaintiff’s counsel then propounded to the witness the following question, stating at the same time, its object was to ascertain whether all the facts had been stated to witness, viz: “You have.stated that, with all the facts before you, you advised Captain Cooper (the defendant) that Utterbach had been guilty of obtaining money under false pretences ; please state what were the facts upon which that advice was based?” ³⁰⁹ To which question and the admissibility of the matters enquired of, the defendant objected, for the reason, among others, that the correctness of the opinion of witness was not in issue, nor were the reasons or grounds on which he based it, but only the fact that he had formed and expressed it to the defendant.

The Court overruled the objection, and allowed the question to be asked and the answer to go to the jury, which forms the ground of the first exception. It is obvious from the nature of the action, which requires proof of want of probable cause, and malice, to sustain it, that the testimony of the witness in his examination-in-chief, (in the particulars which have been quoted,) was given to rebut the presumption of malice, by showing that the defendant, in instituting the prosecution for which he was sued, had proceeded in good faith, upon the advice of counsel learned in the law, given upon a full representation of the facts. “It has been doubted (says a learned author) whether this defence can be set up where the party omits to state to his' counsel, a fact well known to him, but which he honestly supposed was not material — or omits, through ignorance, to state a material fact which actually existed. And it is well settled, that he must show that he communicated to such counsel, all the facts bearing upon the guilt or innocence of the accused, which he knew, or by reasonable diligence could have ascertained.” 1 Hilliard on Torts, 438; Ash vs. Marlow, 20 Ohio Rep., 119; Bliss vs. Wyman, 7 Cal., 257 ; Potter vs. Seale, 8 Cal., 217 . The object of the question excepted to, was to test the good faith of the appellant, by ascertaining whether he or his agents had disclosed all the facts hearing upon the guilt or innocence of the accused, in his possession, in his consultation with his legal adviser, and this could only he effected by allowing some such question as that propounded and excepted to. ³¹⁰ The theory of the appellant, that the correctness of the opinion, or the reasons or grounds on which he based it, were not in issue, would be correct in a case where all the facts were divulged ; the better opinion being, where such is the case, the prosecution is not liable to an action for a malicious prosecution, even if the facts did not warrant the advice and prosecution.

See Walter vs. Sample, 25 Penn. Rep., 275; Hall vs. Suydam, 6 Barb., 83 . But the advice of counsel cannot protect where there has been a “suppressio veri,” or “suggestio falsi.” The suggestion, that there was no evidence that Cooper had ever made any communication to Col. Mosby, and therefore the • question could be no test of Cooper’s good faith, in conferring with Mosby, proves too much.

If it be true, that Cooper, neither by himself nor agent, made any statement of the facts which came to his knowledge, touching his transactions with the appellee, he could not claim the benefit of Mosby’s advice; for they could only stand in the relation of counsel and client after having consulted either in person or by agent. If he consulted through the medium of a third person, it was as important to know what had been conveyed through that medium, as if communicated in person, since the omission of any important fact, in such consultation through the medium, would be as fatal to the client as if he had failed personally to disclose it. The question, however, was not confined to facts communicated by Cooper, but was general, and comprehended all means of information. It may be, as argued by the appellant, that the assumption on which the question was founded, was not literally accurate, yet if was substantially so.

The pith and marrow of Col. Mosby’s evidence was, that after full investigation of the facts in Virginia, for himself, and information of the facts attending the loan in Maryland, from Jas. M, Rasin, defendant’s agent, he ³¹¹ had expressed to the defendant the .opinion that the plaintiff was liable to prosecution for obtaining money, etc.-, under false pretences. This was sufficient to warrant the question on cross-examination of the witness by the appellee’s counsel, requiring him to state “what we» the facts on which his advice was based?” as by specifying those, the facts not disclosed, (if any) would negatively appear.

For these reasons, we think the ruling of the Court below, on the first exception, was right. After the testimony was closed, the appellee offered five prayers, to all of which the appellant objected, because they were not only erroneous in point of law, but without any sufficient legal evidence to support them. The first, second,- fourth and fifth of the appellee’s prayers were granted, and the third rejected. The appellant offered six prayers, the first and third of which were granted, as submitted; the second and fourth conceded; the fifth granted with modifications, and the sixth refused.

The Court of its own accord, gave an additional instruction explaining the words “probable cause.” To which action of the Court, in granting the prayers of the appellee, refusing and modifying those of the appellant, and granting the additional instruction, “sua sponte,” the appellant excepted, which constitutes his second exception. Taking up the points in the order presented in the appellant’s brief, the appellant’s sixth prayer will be the next subject of consideration. This prayer virtually proposed to exclude from argument, and the consideration of the jury, all the facts developed in the record of the case of the appellant against the appellee, and others, in the Circuit Court of Fauquier County, on the ground that the questions decided in the case, were to be taken as finally settled and concluded between the parties, and no longer open to controversy; and the Court having ³¹² determined in that case, that the transaction between